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07/13/88 Peter Vole, v. Atlanta International

July 13, 1988

PETER VOLE, PLAINTIFF-APPELLEE

v.

ATLANTA INTERNATIONAL INSURANCE COMPANY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

526 N.E.2d 653, 172 Ill. App. 3d 480, 122 Ill. Dec. 394 1988.IL.1088

Appeal from the Circuit Court of Lake County; the Hon. Alvin Ira Singer, Judge, presiding.

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. LINDBERG, P.J., and UNVERZAGT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

Defendant, Atlanta International Insurance Company , appeals from a judgment for $85,307.57 entered against it after a jury trial in the circuit court of Lake County. Defendant argues that the trial court: (1) erred in denying its motion to dismiss; and (2) abused its discretion in awarding plaintiff $25,307.57 pursuant to section 155 of the Illinois Insurance Code (Ill. Rev. Stat. 1985, ch. 73, par. 767). We reverse.

Because both parties are well acquainted with the facts of this case, we will only briefly discuss those facts relevant to the Disposition of the appeal. In August 1983, Vole purchased an insurance policy for Vole's Miracle Man, a show horse he owned. This policy provided coverage of $60,000 in the event that the horse died or was stolen. On December 13, 1983, Vole learned that the horse was missing from its boarding stable and presumed stolen. Vole reported this to AIIC through his insurance agent. AIIC's agent, GAB Business Services, Inc., contacted Vole by letter dated December 14, 1983, and asked for information, including the horse's registration certificate, the horse's show record, the police report, and a story of the occurrence from the person who had control of the animal at the time of the theft. In December 1983 Vole provided GAB with those documents.

On June 21, 1984, Vole filed a sworn proof of loss statement with John V. Fabiani of Killarney, Fabiani, and Brody, AIIC's lawyers in New York.

Vole filed a complaint in the circuit court of Lake County on April 17, 1985. AIIC moved to dismiss the complaint on the grounds that it was filed outside the time limitations set forth in the policy. The trial court denied this motion, and the case was subsequently set for trial. The jury awarded Vole $60,000, and the trial court determined that the delay in payment was unreasonable and vexatious. The trial court then assessed another $25,307.57 in damages against AIIC. A timely notice of appeal was filed, and this appeal ensued.

Defendant's first contention is that Vole's complaint was not filed within the time constraints of the policy as modified by Illinois law. Specifically, AIIC argues that the complaint had to be filed within one year plus the number of days between the filing of the required proof of loss form and the rejection of the claim. Vole responds by stating that proof of loss was filed before AIIC claims it was, and even if it wasn't, AIIC waived the right to assert this defense.

The provision in Vole's insurance policy which limited the time in which he could bring suit against AIIC states:

"No suit, action or proceeding for the recovery of any claim under this policy shall be sustainable in any court of law or equity unless the same be commenced within twelve (12) months next after discovery by the insured of the occurrence which gives rise to the claim."

However, this limitation is itself limited by section 143.1 of the Insurance Code, which states:

"Whenever any policy or contract for insurance, except life, accident and health, fidelity and surety, and ocean marine policies, contains a provision limiting the period within which the insured may bring suit, the running of such period is tolled from the date proof of loss is filed, in whatever form is required by the policy, until the date the claim is ...


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